TBD | Item 2-C | Retaliation

1. Definition

The anti-retaliation provisions make it unlawful to discriminate against any individual because s/he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, hearing, or litigation under Title VII, the ADEA, the EPA, or the ADA. This protection applies to individuals challenging employment discrimination under the statutes enforced by EEOC in EEOC proceedings, in state administrative or court proceedings, as well as in federal court proceedings, and to individuals who testify or otherwise participate in such proceedings.²⁴ Protection under the participation clause extends to those who file untimely charges. In the federal sector, once a federal employee initiates contact with an EEO counselor, (s)he is engaging in "participation."²⁵

2. Participation Is Protected Regardless of Whether the Allegations in the Original Charge Were Valid or Reasonable

The anti-discrimination statutes do not limit or condition in any way the protection against retaliation for participating in the charge process. While the opposition clause applies only to those who protest practices that they reasonably and in good faith believe are unlawful, the participation clause applies to all individuals who participate in the statutory complaint process. Thus, courts have consistently held that a respondent is liable for retaliating against an individual for filing an EEOC charge regardless of the validity or reasonableness of the charge.²⁶ To permit an employer to retaliate against a charging party based on its unilateral determination that the charge was unreasonable or otherwise unjustified would chill the rights of all individuals protected by the anti-discrimination statutes.

3. Person Claiming Retaliation Need Not Be the Person Who Engaged in Participation

The retaliation provisions of Title VII, the ADEA, the EPA, and the ADA prohibit retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights. For example, it would be unlawful for a respondent to retaliate against an employee because his or her spouse, who is also an employee, filed an EEOC charge.²⁷ Both spouses, in such circumstances, could bring retaliation claims.

4. The Practices Challenged in Prior or Pending Statutory Proceedings Need Not Have Been Engaged in by the Named Respondent

An individual is protected against retaliation for participation in employment discrimination proceedings even if those proceedings involved a different entity.²⁸ For example, a violation would be found if a respondent refused to hire the charging party because it was aware that she filed an EEOC charge against her former employer.

²⁴ The participation clause protects those who testify in an employment discrimination case about their own discriminatory conduct, even if such testimony is involuntary. For example, in Merritt v. Dillard Paper Co., 120 F.3d 1181(11th Cir.1997), the defendant fired the plaintiff after he reluctantly testified in his co-worker's Title VII case about workplace sexual activities in which he participated. The president of the defendant company told the plaintiff at the time of his termination that his testimony was "the most damning" to the defendant's case. The court found that this comment constituted direct evidence of retaliation.
²⁵ Hashimoto v. Dalton, 118 F.3d 671, 680(9th Cir. 1997).
²⁶ See, e.g., Wyatt v. Boston, 35 F.3d 13, 15(1st Cir. 1994).
²⁷ See , e.g., EEOC v. Ohio Edison Co., 7 F.3d 541, 544(6th Cir. 1993) (agreeing that plaintiff's allegation of reprisal for relative's protected activities states claim under Title VII); Thurman v. Robertshaw Control Co., 869 F. Supp. 934, 941(N.D. Ga. 1994) (plaintiff could make out first element of prima facie case of retaliation by showing that plaintiff's close relative participated in the complaint process).

The Commission disagrees with the Fifth Circuit's holding in Holt v. JTM Indus., 89 F.3d 1224(5th Cir. 1996), cert, denied, 117 S.Ct. 1821 (1997), that there was no unlawful retaliation where the plaintiff was put on paid administrative leave because his wife had filed an age discrimination charge.
²⁸ See, e.g., Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 873-74 (6th Cir.) (defendant's frequent reference to plaintiff's sex discrimination action against prior employer warranted inference that defendant's refusal to hire was retaliatory), cert, denied, 502 U.S. 1013 (1991).

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2-C | PROTECTED ACTIVITY: PARTICIPATION

1. Definition

2. Participation Is Protected Regardless of Whether the Allegations in the Original Charge Were Valid or Reasonable

3. Person Claiming Retaliation Need Not Be the Person Who Engaged in Participation

4. The Practices Challenged in Prior or Pending Statutory Proceedings Need Not Have Been Engaged in by the Named Respondent

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2-C | PROTECTED ACTIVITY: PARTICIPATION

1. Definition

2. Participation Is Protected Regardless of Whether the Allegations in the Original Charge Were Valid or Reasonable

3. Person Claiming Retaliation Need Not Be the Person Who Engaged in Participation

4. The Practices Challenged in Prior or Pending Statutory Proceedings Need Not Have Been Engaged in by the Named Respondent

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TBD 1.037